Citation Nr: 0913282
Decision Date: 04/09/09 Archive Date: 04/21/09
DOCKET NO. 04-20 654 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to service connection for post traumatic stress
disorder (PTSD).
ATTORNEY FOR THE BOARD
Kristi Barlow, Counsel
INTRODUCTION
The Veteran served on active duty from February 1960 to
January 1964.
This matter comes before the Board of Veterans' Appeals
(Board) from a September 2003 rating decision by the North
Little Rock, Arkansas, Regional Office (RO). The same matter
was previously before the Board in June 2006, when it was
remanded for additional development.
In April 2005, the Veteran was notified that he was scheduled
for a hearing at the RO before a Veterans Law Judge, but he
failed to report for his hearing in July 2005. Because the
Veteran neither submitted good cause for failure to appear
nor requested to reschedule the hearing, the request for a
hearing is deemed to be withdrawn. See 38 C.F.R. §
20.704(d).
This appeal is again REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
you if further action is required on your part.
REMAND
Verification of Stressors
As discussed in the Board's previous remand decision from
June 2006, the Veteran reports that his stressor relates to
his service on a Color Guard Burial Detail in San Diego,
California, for 14 months. Currently, the claims file
contains his service medical records and his service
personnel records. The appellant's military service records
confirm that he was assigned to the U.S. Naval Training
Center at San Diego from May 1960 until May 1961. A letter
sent by VA to the US Armed Forces Center for Research of Unit
Records (now called the U.S. Army and Joint Services Records
Research Center) in August 2002 requested confirmation of the
color guard detail assignment, including performing funeral
detail for many military burials. In June 2003, the Center
for Unit Records and Research replied that the request for
the information being sought concerning military unit
assignments, morning reports, and daily personnel actions
should instead be sent to the National Personnel Records
Center (NPRC). Because there was no indication in the file
that any such follow-up request had been made to the NPRC,
the Board's prior remand directed that this occur. On
remand, the AMC submitted a request to the NPRC. On July 12,
2006, the NPRC provided the following response: "Mailing a
complete copy of record. Morning report for Navy is not a
matter of record." A review of the claims file, however,
fails to reveal that the "complete copy of record" that was
being mailed was ever received or associated with the claims
file. Accordingly, on remand, a search needs to be made to
locate these apparently missing records, or make another
attempt to obtain the referenced records from the NPRC.
Medical treatment records
Following the prior Board remand in June 2006, extensive
mental health and other medical treatment records were
obtained and associated with the claims file from the VA
Medical Center in North Little Rock, Arkansas. On remand,
any further treatment records from October 2007 to the
present should be additionally obtained and associated with
the record. See Dunn v. West, 11 Vet. App. 462, 466-67
(1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
Medical Examination
In September 2003, the Veteran underwent a VA examination
and related a history of being traumatized while serving in
the Color Guard and watching families fight during funerals.
He stated that he had been alcohol free for fifteen years
and drug free for one year. Although the examiner did not
have the Veteran's claims folder, he accepted the
information provided by the Veteran as accurate and
determined that he had some symptoms consistent with a
diagnosis of PTSD, including nightmares and intrusive
thoughts. The examiner, however, did not feel that the
applicable criteria had been met for a diagnosis of PTSD
because "of the nature of the traumatic episode he
reported." Nevertheless, the examiner added that "it is
possible that he has an anxiety disorder, but that was not
the focus of this interview."
A review of the voluminous VA treatment records obtained
following the Board's prior remand reveals that, subsequent
to the 2003 VA examination, the Veteran has received
numerous diagnoses of PTSD, as well as depressive disorder.
Based on these subsequent diagnoses, the Board finds that an
additional medical examination is required in order to
reconcile the various diagnoses of record, as well as to
correct the deficiency caused by the 2003 examiner not
having the claims file or other pertinent records at the
time of the examination. In addition, the new examination
needs to address whether, if the Veteran has a diagnosed
mental health condition other than PTSD, such other
condition is related to service. See Clemons v. Shinseki,
No. 07-558 (Feb. 17, 2009) (the scope of a mental health
disability claim includes any mental disability that may
reasonably be encompassed by the claimant's description of
the claim, reported symptoms, and the other information of
record).
Accordingly, this case must be REMANDED to the Agency of
Original Jurisdiction (AOJ) for the following actions to be
completed:
1. In follow-up to the July 12, 2006,
response received from the National
Personnel Records Center (NPRC) which
indicated that a complete copy of
requested service records was being
mailed, a search needs to be made to
locate these apparently missing records,
or another attempt needs to be made to
obtain the records from the NPRC. The
records being sought relate to the
appellant's report of having served on
color guard assignments, including
performing funeral detail for many
military burials, during service from
approximately May 1960 to October 1961.
The information that is being sought
concerns the Veteran's military unit
assignments and any morning reports or
daily personnel actions that would
contain information as to such an
assignment for the time period in
question.
2. The AOJ should obtain all records of
mental health treatment provided to the
appellant at the North Little Rock VAMC
(and related outpatient clinics), dating
from October 2007 to the present.
3. Following the completion of the
above development, the AOJ should
schedule the Veteran for an appropriate
mental health examination regarding his
claim for service connection for PTSD.
The claims folder must be made
available to the examiner for review.
All indicated tests, if any, should be
conducted. As part of the examination
report, the examiner is requested to
express an opinion as to whether it is
at least as likely as not, i.e., at
least a 50 percent probability or
greater, that (a) the Veteran has PTSD
due to a specified in-service stressor,
and (b) if the Veteran has a diagnosis
other than PTSD, whether such other
mental health disorder is related to an
event, injury, or disease in service.
In rendering these opinions, the
examiner is requested to attempt to
reconcile the various mental health
diagnoses of record. A complete
rationale must be provided for all
opinions expressed.
4.. After the above actions have been
completed, the Veteran's service
connection claim should be readjudicated.
If, upon readjudication, the benefit
sought on appeal remains denied, the
Veteran should be provided a supplemental
statement of the case (SSOC). The AOJ
should allow an appropriate period of
time for response.
A Veteran has the right to submit additional evidence and
argument on a matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for Veterans
Claims for additional development or other appropriate action
must be handled in an expeditious manner. See 38 U.S.C.A. §§
5109B, 7112 (West Supp. 2005).
_________________________________________________
Richard C. Thrasher
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).